As the nation prepares for the burial of Supreme Court Justice Ruth Bader Ginsburg and the nomination of her replacement, the remaining eight Justices are set to consider not one, but two, Arizona election law cases on Tuesday. Depending on what the Court decides this week, Arizona could be in for an "October surprise".
The Ruth-less Court is not hearing oral argument on the cases, but deciding - behind closed doors - whether or not to accept the cases for decision. Besides the Arizona impacts, both potentially could impact election laws across the country.
In the more widely-watched case, Arizona's so-called "ballot harvesting" law is at issue. The Ninth Circuit found that the Arizona Legislature had discriminatory intent in passing the law that prohibits people and groups from collecting and turning in voters' early ballots. (There are limited exceptions for family members, care givers and others.) The Ninth Circuit granted a stay on its decision as both Attorney General Mark Brnovich and the Republican National Committee appealed, so the prohibition remains in place pending "final disposition". (The Stay Order is re-published below.)
It is very possible that the Supreme Court will accept the case. However, IF the Supreme Court denies certiorari shortly after the conference, that would end the stay and remove the ban from the books. In this election - where more than 3/4 of Arizonans will get (requested) early ballots in the mail in just two weeks - that could scramble everyone's GOTEV* efforts.
The other case the Court will be conferencing about on Tuesday is about this year's election, but would only impact future situations. Arizona Governor Doug Ducey was sued for not calling for an earlier special election to fill Senator John McCain's seat after his passing in 2018. The Legislature had passed a law which permitted Ducey to appoint first Jon Kyl and then Martha McSally to the seat. The Special Election is being held this November 3, more than two years after McCain's passing.
The constitutionality of the statute was at issue in the Tedards case, and the plaintiff sought to move up the special election. The plaintiff lost at both the District Court and 9th Circuit levels, and it would be a surprise if the Supreme Court decides to hear this case.
*"Get Out The Early Vote"